Citation NR: 9633205
Decision Date: 11/25/96 Archive Date: 12/02/96
DOCKET NO. 95-13 192 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased evaluation for the veteran’s
service-connected post-traumatic stress disorder, presently
evaluated as 30 percent disabling, to include a total rating
based on unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
D. Schechter, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1966 to April
1968.
The appeal arises from the January 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York, denying, in pertinent part, the veteran
an increased evaluation (to include a total rating) for his
service-connected post traumatic stress disorder (PTSD),
evaluated as 30 percent disabling.
Also in that January 1995 decision, the RO denied the veteran
entitlement to service connection for alcohol dependence with
resulting seizure disorder, secondary to his PTSD. The Board
observes that the veteran’s March 1995 notice of disagreement
and April 1995 substantive appeal leading to this review by
the Board only disagreed and perfected appeal on the issue of
an increased evaluation for PTSD.
However, in August 1996 and November 1996, the veteran’s
accredited representative advanced arguments concerning the
issues of secondary service connection for alcohol dependence
and a seizure disorder. In view of the date such arguments
were received, they do not serve as a timely notice of
disagreement with the January 1995 rating decision, but
rather a request to reopen to reopen both issues. Since
these issues have not been developed for appellate review,
the Board refers them to the RO for appropriate action.
REMAND
The veteran’s service-connected PTSD is evaluated under
38 C.F.R. § 4.132 (1995), which contemplates mental
disorders. Generally, the same rating criteria apply to all
disorders listed under 38 C.F.R. § 4.132 (1995). However,
the rating criteria which apply to mental disorders have been
amended effective in November 1996.
The United States Court of Veterans Appeals (Court) has
stated that where laws or regulations change after a claim
has been filed or reopened but before the administrative or
judicial appeal process is completed, unless Congress
provides otherwise, the version of the law most favorable to
the appellant will apply. Karnas v. Derwinski, 1 Vet.App.
308 (1990). Here, either the amended or current rating
criteria may apply, whichever are most favorable to the
veteran. The veteran must be afforded review of his case
under the new criteria.
The Court has stated that when the Board addresses a question
in its decision that was not addressed by the RO, the Board
must consider whether the veteran has been afforded adequate
notice and opportunity to submit evidence or argument, as
authorized by law, so that the Board does not prejudice the
veteran in its opinion by denying those rights. Bernard v.
Brown, 4 Vet.App. 384, 393 (1993). Here, the veteran must be
afforded an opportunity to submit evidence and argument in
response to the new regulations. The RO must therefore
review the case, applying the regulations most favorable to
the veteran, whether new or old, and either issue a new
rating decision, if an increase is in order, or provide a
supplemental statement of the case reflecting and referencing
the new rating criteria.
The Board notes that a VA rating examination may be necessary
if the new criteria are applied. The last VA rating
examination of record was conducted in November 1994, where,
necessarily, the old (unamended) rating criteria were used.
In light of the newly amended regulations previously under
38 C.F.R. § 4.132 (1995), now redesignated as 38 C.F.R.
§ 4.130 (1996), the Board finds that the case must be
remanded to comply with the directives set forth in Bernard
and Karnas. A copy of the new rating criteria has been
placed in the claims folder for use in this remand.
The Board also notes that the veteran has submitted documents
indicating that he is receiving or entitled to receive Social
Security Administration disability benefits. However, it is
not clear that all the medical records supporting that Social
Security decision are of record. The Board notes that Social
Security Administration disability determinations are
relevant to a determination of whether a veteran is able to
secure and follow a substantially gainful occupation under 38
C.F.R. § 4.17, and the Department of Veterans Affairs duty to
assist includes seeking to obtain these records. Murincsak
v. Derwinski, 2 Vet.App. 363, 370, 372 (1992).
Additional development is necessary to fulfill the VA’s duty
to assist. Accordingly, the matter is REMANDED for the
following actions:
1. The RO should request that the
veteran identify all sources of medical
examination or treatment related to his
PTSD received subsequent to the RO rating
decision of January 1995, and that he
furnish signed authorizations for release
to the VA of private medical records in
connection with each non-VA medical
source he identifies. Copies of the
medical records from all sources he
identifies, and not currently of record,
should then be requested and associated
with the claims folder.
2. The RO should request copies of the
medical records supporting the veteran's
award of Social Security Administration
benefits. Any unsuccessful attempts to
obtain records should be documented in
the claims folder.
3. After the aforementioned documents
have been obtained, the RO should arrange
for the veteran to undergo a VA social
and industrial survey. A detailed work
history should be elicited, and a
assessment of the veteran’s day-to-day
functioning should be made. The social
worker should comment on the degree of
social and industrial impairment which
the veteran experiences as a result of
his service connected PTSD. The social
worker should distinguish between the
impairment attributable to the veteran’s
service connected PTSD and any nonservice
connected condition found to be present,
including alcoholism and a seizure
disorder. The claims folder should be
made available to the social worker prior
to the examination of the veteran.
4. The RO should schedule the veteran
for a VA psychiatric examination. Before
examining the veteran, the examiner
should carefully review the veteran's
claims folder, and review the new rating
criteria for mental disorders, which
became effective in November 1996, a copy
of which has been inserted into the
claims folder.
The examiner should then conduct a
thorough psychiatric examination.
The findings of the examiner must
address the presence or absence of
symptoms set forth in the new
criteria contained in the rating
schedule. All necessary special
studies or tests including
psychological testing and evaluation
such as the Minnesota Multiphasic
Psychological Inventory are to be
accomplished. The examiner should
assign a numerical code under the
Global Assessment of Functioning
Scale (GAF) provided in the
Diagnostic and Statistical Manual
for Mental Disabilities. It is
imperative that the physician
include a definition of the
numerical code assigned under that
manual in order to assist the RO and
the Board to comply with the
requirements of Thurber v. Brown,
5 Vet.App. 119 (1993). To the
extent possible, the examiner should
distinguish between the symptoms and
degree of impairment of
employability attributable to PTSD
and those attributable to alcoholism
and/or a seizure disorder. A
complete rationale for any opinion
expressed must be provided.
5. Following the completion of the
foregoing, the RO must review the claims
folder, and ensure that the requested
action was completed in full. If the
development is incomplete, appropriate
corrective action is to be implemented.
6. Thereafter, the RO should take
adjudicative action on the issue of
entitlement to a increased rating for
PTSD, to include the issue of a total
rating on a schedular or unemployability
basis. Such consideration must
reference the new rating schedule
criteria for psychiatric disorders. In
the event the determination is adverse
to the veteran, he and his
representative should be provided a
supplemental statement of the case and
be given the opportunity to respond
thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until further informed. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case. The purposes of this
REMAND are to develop the record and afford the veteran due
process of law.
N. R. ROBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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